Tag: Employment Law

Most jobs are considered to be “at will” employment, but employees may still be able to sue an employer if the reason for termination is determined to be illegal. Unfortunately, termination is something that nearly every workplace must deal with, so it’s important that this matter be handled with delicacy and professionalism. The following are a few tips that can keep a workplace safe from wrongful termination lawsuits.

1. Communicate Regarding Expectations

Letting employees know what’s expected from day one can help to prevent performance issues and protect an employer if an employee is fired for failing to meet expectations. Of course, regular feedback should be given so that employees know whether or not they’re meeting expectations. If an employee is consistently warned about performance issues, it should be no surprise when termination follows.

2. Keep Great Documentation

Even if an employee is alerted to issues with performance, tardiness, or behavior, it can be difficult to prove that this feedback was given if there’s no documentation. Keeping great records can not only help to protect an employer from wrongful termination, it can also improve transparency and communication regarding ongoing issues. This can in turn improve consistency and organization, preventing problems from several angles.

3. Be Compassionate During Terminations

Being fired has been identified as one of the most stressful things that can happen in a person’s life. When the time comes to terminate someone, no matter what the reasons for the termination, being compassionate can help to ease the inherent tension in the situation. How an employee feels during and after the termination can be a big factor in whether or not the employee feels the need to pursue legal action.

4. Purchase Liability Insurance

Liability insurance is an added expense for the business, but may help to save dollars if an employee sues the company for wrongful termination. Not all liability insurance is the same, however. It may be prudent to make sure the option still exists to defend against a lawsuit and avoid a settlement, even if liability insurance is available to help pay settlements when they are found to be the best course of action.

5. Help Employees with Next Steps

Employees that find new jobs very quickly after termination usually don’t sue for wrongful termination. For this reason, it can be beneficial to assist employees with next steps as part of the termination process. Providing a reference or helping with networking, especially in cases where an employee was let go because of downsizing, can help the employee to move forward fast and prevent stress-inducing downtime.

Termination can be difficult for both employers and employees, so following certain guidelines can ease stress of the situation and prevent the hard feelings that sometimes lead to wrongful termination lawsuits. By detailing expectations and establishing a consistent chain of events that happens prior to termination, employers can protect themselves from liability. Employees may also feel more secure knowing what to expect and seeing that other employees are held accountable.

Hiring a convicted felon isn’t what most businesses set out to do. In fact, most companies would prefer to hire people who will be soon nominated for sainthood, which leaves candidates with a criminal record out. Employers need to keep in mind, though, that many saints have checkered pasts and so may some of your best employees. Here’s what you need to know about hiring employees with a criminal history.

What Is Ban the Box?

Most job applications have a box that applicants check off to say whether or not they have any felony or misdemeanor convictions. But, 25 states and several cities have passed “ban-the-box” laws. Some additional states have “fair chance” legislation, which means that you can’t ask the applicant about convictions on a job application.

Individual state laws vary, so double check your state or other governmental jurisdiction’s laws before you ask a person to fill out an application. As a general rule, ban the box means that you can’t ask about any convictions until you get to the job offer stage of the selection process.

The Purpose of Ban-the-Box Laws

What’s the purpose behind these laws? The state has a vested interest in getting people with a criminal history working—having a job reduces the chance of recidivism. If you want to lower crime, you want people working instead of returning to their bad ways.

But the other reason for ban-the-box laws is to stop discrimination against black men. However, research has shown that this may not be working as desired—since employers can’t ask about criminal history, they are less likely to interview black and Hispanic candidates.

Researchers looked at low-skilled men between the ages of 25 to 34 and determined that “in ban-the-box areas… employers are less likely to interview young, low-skilled black men because those groups are more likely to include ex-offenders. They instead focus on hiring groups made up of men they believe are less likely to have gone to prison.”

So, while the laws may help actual convicts, they can adversely affect low-skilled black men who have no criminal history.

When Can You Ask About a Person’s Criminal History?

In all states, you can ask about felony convictions before you actually hire an employee. The ban-the-box legislation just prevents you from asking about criminal history before you’re ready to make an offer. When you’re ready to make an offer you can do a background check which involves asking about any convictions.

Can You Reject an Applicant Because of a Criminal History?

The answer to this question is sometimes. Some convictions prevent you from having certain types of jobs altogether. For instance, if you run a daycare, you absolutely can and must reject convicted child sexual abusers. That’s an easy decision. In other areas, the decision is not so cut and dried.

Rejecting people based on their criminal history may violate the Civil Rights Act of 1964’s Title VII. The Equal Employment Opportunity Commission says that there are two key points when considering how to treat convicted job candidates. They say:

Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).

Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if:

They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND

They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

Ban-the-box legislation is an attempt to comply with the first part of this (although, it’s not working), but what about the second part? First, you can’t assume an arrest means a person committed a crime that would disqualify the person from the job.

If your candidate has a conviction, you can consider that they committed the crime of which they were convicted. If there is simply an arrest, you can use that to start an inquiry into whether or not the person should be disqualified.

How Do You Determine Whether to Hire a Candidate With a Criminal History?

But, how do you determine if the convicted person is “likely to be a responsible, reliable, or safe employee”? That’s going to vary based on state laws, but here are some general guidelines.

Treat people of different races/genders the same. If you go ahead and hire a white man with a drug conviction because it was “just a youthful indiscretion” and then reject a black man with a similar conviction you’re violating the law.

How long has it been since the conviction? If the job candidate has a conviction for shoplifting from six months ago, you can make a strong argument that this is not a trustworthy individual. If that conviction occurred 20 years ago, however, and no repeat convictions have occurred—not so much.

How does the conviction relate to the job? You can reject a person who embezzled from a previous employer as your company’s comptroller, but probably not for a job as a landscaper with no access to funds.

Did you give the candidate a chance to explain himself? If a candidate has a conviction that you say disqualifies him for the position, the EEOC requires you to give the person a chance to “demonstrate that the exclusion should not be applied due to his particular circumstances.” This means that you’ll have to sit down and listen to what the candidate has to say and perhaps collect some additional information.

Always Consult With Your Attorney About Hiring Employees With a Criminal History

If you wish to reject a job candidate based on a conviction, before you do so, please consult with your employment law attorney. Because state and even local laws can vary considerably, you can’t make generalized judgments on what you think is best for your business. You need to ensure that you have followed the law precisely and that you aren’t violating Title VII in any way.

Many companies skip consulting with their attorney because that discussion costs money. But, it’s considerably cheaper to pay for an initial consultation than to have to pay for the resulting lawsuit. Remember, even lawsuits that you win are incredibly expensive to litigate.

For jobs with state licensing, use the licensing procedures as your guidelines. If the licensing agency allows the person to have a license with that particular conviction, you should most likely (consult with your attorney) not consider rejecting the candidate because of that conviction either.

When trying to decide how you want to shape your policy regarding convicted felons, consider the true nature of your business. Does your business require actual saints or are normal humans enough?

Disclaimer: Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. The site is read by a world-wide audience and employment laws and regulations vary from state to state and country to country. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. This information is for guidance, ideas, and assistance.­­

When conducting your internal I-9 form audit start off by outlining your procedure and how you plan to conduct the audit

For Section Two of the I-9 form you’ll need to ensure one document from List A is included and completed or one document from List B and one from List C are listed and completed

When conducting your internal audit, Section Three of the I-9 form deals with reverification which only applies if evidence of employment authorization (List A or List C document) presented in Section two expires

The best way to correct the Form I-9 is to line through the portions of the form that contain incorrect information (preferably in a contrasting ink color), then enter the correct information, initial and date your correction

Dealing with I-9 Forms can be tricky. It’s definitely not the easiest part of your day, and it requires a lot of attention to detail. No one even wants to talk about the possibility of getting audited for your I-9 forms. But what if I told you it was actually pretty simple? In this blog, I am going to list off the six steps you need to conduct your own internal Form I-9 audit. So if you ever hear ICE (Immigration and Customs Enforcement) knocking on your door, you’ll be ready!

Step One: Outline Your Procedure

When conducting your internal I-9 form audit start off by outlining your procedure and how you plan to conduct the audit. Your internal audit should concentrate on key problems that frequently arise during the completion of the I-9 form.

Conducting the Internal Audit – When preparing to conduct your internal audit be sure you account for the need of the following criteria:

Unbiased – Make sure the selection of Forms I-9 for an internal audit is not based on the employee’s race or nation origin. Either audit all forms, or audit a truly random sample of forms. An organization may not selectively choose which forms to audit.

Annual – This provides a defense against allegations of targeted internal Form I-9 auditing. Internal audit processes should mimic government compliance audit processes. This not only verifies Forms I-9 on file, but it also trains the Human Resources Department to prepare for actual government compliance audits.

Consistent – Either keep copies of all I-9 verification documents, or none of them. If your records are not complete, then you must either obtain the missing documents, or dispose of all collected verification documents.

Knowledgeable – Designate an “I-9 Officer” or Company Representative, responsible for knowing and applying Form I-9 rules. The authorized I-9 Officer should achieve the following:

Become well-versed on the correct completion of the Form I-9

Develop and enforce a compliant program

Create and implement internal training procedures

Conduct regular internal audits

Have a plan of action in the event of an ICE audit

Step Two: Auditing Section One of the I-9 Form

You’ll need to make sure you’re gathering all of the information below to complete step two, auditing Section One of the I-9 form.

Employee Information

Employee first and last names completed

Maiden name or other names if it is applicable; “N/A” for “Other Names Used” if it does not apply

Full address fields completed – No PO boxes allowed

Date of birth in mm/dd/yyyy format

Social Security Number (optional); Social Security Number mandatory for

E-Verify participants

Citizenship/Immigration Status

Status is selected (not more than one)

Lawful Permanent Resident – including alien registration number

If employee is not a permanent resident but has authorization to work in the United States, the alien number or admission number must be included and correctly stated

Expiration date of employment authorization is included and correctly stated

Employee Attestation

Employee’s signature

Date of employee’s execution of form

Form I-9 signed on the first day of employment or the period between the job being accepted by the employee and the first day of employment

Preparer/Translator Certification

Signature of preparer/translator if applicable

Name of preparer/translator correctly stated

Address of preparer/translator correctly stated

Step Three: Auditing Section Two of the I-9 Form

For Section Two of the I-9 form you’ll need to ensure one document from List A is included and completed or one document from List B and one from List C are listed and completed.

List A (Identity and Employment Authorization)

Appropriate document listed

List A document title correctly stated

List A document issuing authority correctly stated

List A document number correctly stated

List A document expiration date, if applicable, correctly stated

Receipt showing application for document accepted; awaiting original to be presented within 90 days

List B (Identity)

List B document title correctly stated

List B document issuing authority correctly stated

List B document number correctly stated

List B document expiration date, if applicable, correctly stated

Receipt showing application for document accepted; awaiting original to be presented within 90 days

List C (Employment Authorization)

Employee’s first day of employment correctly stated (mm/dd/yyyy)

Signature of Employer/Authorized Representative present and in correct box

Date of certification correctly stated (mm/dd/yyyy)

Certification signed by the third business day after the hire date

Title of Authorized Representative correctly stated

Last Name and First Name of Authorized Representative correctly stated

Employer’s Business or Organization Name correctly stated

Address of business correctly stated – No PO boxes allowed

Step Four: Auditing Section Three of the I-9 Form

When conducting your internal audit, Section Three of the I-9 form deals with reverification which only applies if evidence of employment authorization (List A or List C document) presented in Section two expires. Step four also covers what to do if you’re missing any I-9 forms.

Do not reverify: US Citizens and Noncitizen Nationals, or Lawful Permanent

For current employees – require employee to present documentation and complete a new Form I-9 with current dates. Date of hire will be the employee’s actual date of hire, which may have been years earlier. Attach a memo to the Form I-9 explaining the discrepancy between the date of hire and the date of completion of the Form I-9. Sign and date the memo.

For former employees – date and attach a memo to Forms I-9 for any terminated employees with missing or incorrect Form I-9 information. Retain it with other Forms I-9. Documenting this demonstrates an employer’s good faith effort to correct the forms by performing an internal self-audit.

Step Five: Addressing Form I-9 with Errors

Errors are bound to happen. Especially when you’re dealing with I-9 forms. But here’s what you do to ensure you keep on trucking!

Easily correctable – you may do so on the form. The best way to correct the Form I-9 is to line through the portions of the form that contain incorrect information (preferably in a contrasting ink color), then enter the correct information. Initial and date your correction. Never use white correction fluid. If you have previously made changes on Forms I-9 using white correction fluid instead, USCIS recommends that you attach a note to the corrected Forms I-9 explaining what happened. Be sure to sign and date the note.

Not easily correctable – complete a new Form I-9.

The old Form I-9 is attached to the new one, along with a note explaining the reason for creating a new Form I-9. Do not throw away the old form.

Step Six: Administrative Wrap Up

You’ve just completed conducting your internal I-9 Form! But you’re not completely done, yet. There are still a few administrative things you’ll need to wrap up.

Photocopies of List 2 documents – if they exist, are attached to the Form I-9 and are readable. It is not mandatory to make photocopies (except in Colorado), but if they are made, they must be kept. If photocopies are made for one employee, they must be made for all employees.

Employers enrolled in E-Verify must keep copies of the following documents if they are presented by the employee – US Passport or Passport Card, Permanent Resident Card (I-551), or Employment Authorization Card (I-766).

Manual Audit Log – The list of the Forms I-9 containing errors is completed. (This is the audit log that shows you have made a good faith effort to ensure Form I-9 compliance. The log should contain three columns: employee’s name, the errors, and the actions taken to rectify the errors.)

Why You Need To Do This, Right Now

Now you’re on your way to conducting a flawless Form I-9 internal audit. But why was this so important? Recently there has been an increase in enforcement for Form I-9 audits for employers. So what exactly changed?

On January 10, 2018, early morning reports of raids by Immigration and Customs Enforcement (ICE) confirmed what had been assumed – worksite enforcement has been increased and employers need to take note. The continued reports of high-profile ICE raids are definitely intentional. ICE wants employers to know that they’ve increased enforcement and they want you to take this very seriously. The current administration also appears to be building upon successful tactics that were used during both the Bush and Obama eras by focusing on administrative arrests of employees and requests for Forms I-9 through a Notice of Inspection (NOI) to employers. ICE conducted 1,279 audits of I-9 forms in 2016 and that number is expected to rise dramatically under the new enforcement focus.

Sure this can be scary, but knowing how to conduct your own internal I-9 form audits can help. And the word to remember for this process is “thorough.” An internal audit should include an in-depth review of all of an organization’s Forms I-9. Considering the limited resources and time of an organization, a comprehensive review of all I-9 records may not be feasible. In this case, organizations are encouraged to review a significant and fair sample of Forms I-9 to determine where the majority of errors/omissions occur, how to correct these, and how to implement better training and policies to ensure proper completion and compliance moving forward. For more information on self-auditing guidelines see the Department of Justice publication: Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

Firing an employee is stressful for all parties—not just for the employee losing a job. No matter how well you’ve communicated about performance problems with the employee, almost no one believes that they will actually get fired. With cause, too. The average employer waits too long to fire a non-performing employee much of the time.

So, employees convince themselves that they won’t get fired: they think that you like them; they think that you know that they are a nice person, or you recognize that they’ve been trying hard. In fact, you may believe and think all of these things. But, none of your feelings matter when the employee is not performing his job.

Firing an employee may take you awhile—usually much longer than the circumstances merit. Because you are kind, caring, and tend to give employees another chance. But, these are the top 10 things you do not want to do when you do decide to fire an employee.

Don’t Fire an Employee Unless You Are Meeting Face-to-Face

Do not fire an employee using any electronic method—no emails, IMs, voicemails, or phone calls. Even a letter is inappropriate when you fire an employee.

When you fire an employee give them the courtesy that you would extend to any human being. They deserve a face-to-face meeting when you fire an employee. Nothing else works.

The fired employee will remember and your other employees who remain have even longer memories. And, no, during this time of social media dominance, don’t believe for a minute that the circumstances of the firing will remain secret.

You will have created a scenario in which your remaining employees are afraid to trust you. Or worse, they trust that you may harm them, too.

Don’t Fire an Employee Without Warning

Nothing makes an employee angrier than feeling blindsided when fired. Unless an immediate, egregious act occurs, the employee should experience coaching and performance feedback over time. Before you fire an employee, try to determine what is causing the employee to fail.

If you decide the employee is able to improve her performance, provide whatever assistance is needed to encourage and support the employee. Document each step in the improvement process so that the employee has a record of what is happening at each step. The employer is also protecting its own interests in the event of a lawsuit over the termination.

If you are confident that the employee can improve, and the employee’s role allows, a performance improvement plan (PIP) may show the employee specific, measurable improvement requirements. (A PIP is difficult, if not impossible, with a manager or HR staff, once you have lost confidence in their performance.)

Do not, however, use a PIP unless you are confident that the employee can improve. The agonizing process of meeting weekly to chart no progress is horrible for the employee, the manager, and the HR rep, too.

The actual termination—while almost always somewhat of a surprise—should not come with no warning.

Don’t Fire an Employee Without a Witness

Especially in the US, anyone can sue anybody, at any time, for any reason. In employment termination cases, the employee has to find a lawyer who believes he can win the case and thus, collect his fee. The best practice is to include a second employee in the meeting when you fire an employee.

This gives you an individual who hears and participates in the employment termination in addition to the manager. This person can also help pick up the slack if the hiring manager runs out of words or is unsure of what to say or do next.

This witness is often the Human Resources staff person. The HR person has more experience than the average manager, in firing employees, so can also help keep the discussion on track and moving to completion.

The HR person can also ensure that employees are treated fairly, equally, and with professionalism across departments and individual managers. This limits your liability when you fire an employee.

Don’t Supply Lengthy Rationale and Examples for Why You Are Firing the Employee

If you have coached and documented an employee’s performance over time and provided frequent feedback, there is no point in rehashing your dissatisfaction when you fire the employee. It accomplishes nothing and is cruel.

Yet, every employee will ask you why. So, have an answer prepared that is honest and correctly summarizes the situation without detail or placing blame.

You want the employee to maintain her dignity during an employment termination. So, you might say, “We’ve already discussed your performance issues. We are terminating your employment because your performance does not meet the standards we expect from this position.

“We wish you well in your future endeavors and trust that you will locate a position that is a better fit for you. You have many talents and we are confident that you will locate a position that can take advantage of them.”

Or you can simply remind the employee that you have discussed issues with him or her over time, and leave it at that.

The more detailed you become, the less able you will be to use any of the information you discover following the employment termination in a subsequent lawsuit. And, as an employer, you will always find out additional information.

For example, think about a terminated HR staff person who had months of new employee paperwork in her drawer. The employees had not been enrolled in healthcare insurance.

In another example, a marketing employee had the entire bookkeeping for her bar which she operated in the evenings on her company-owned computer. (The employer was kind and gave her a copy of her bookkeeping which they didn’t need to do.)

We are already living in a digital age but soon a wave of technological disruptions will change the current HR scenario. While AI is already making it big, Blockchain will revolutionise the way data is shared. Apart from this, the most uplifting part of Union Budget 2018 is the fact that AI and Blockchain became buzzwords not only within the technology community but also the wider world and common man. The words which were only used by some communities, these days they are known by all.

What is Blockchain?

Blockchain can be seen as a transparent and secure transaction ledger where transactions are both recorded and confirmed. All participating parties in a distributed network can share access to this continuously growing database to address their needs for information. Users in the network can contribute to the database by adding new transactions (or blocks) to the ledger stream. And, more importantly, every transaction across the network is recorded and stored without the ability to alter it, whether intentionallyor accidentally. This level of security in technology creates a beautiful new reality for a decentralized trusted information source in a landscape of broken global trust.

More than 40 leading financial firms and a growing number of companies across industries are already using Blockchain, according to The Wall Street Journal.

While there are numerous reasons that Blockchain is a game changer, here are few which will change Human Resource industry:

Blockchain will be very helpful in verifying and assessing the educational credentials, skills and performance of potential recruits – enabling those recruits to be allocated to the most appropriate roles, thereby reducing the amount of time recruiters spend cross checking and verifying information

Blockchain has always been seen as a quicker cross-border payment option. It is very efficient in cross-border payments, including international expenses and tax liabilities, with the potential for organizations to create their own corporate currencies.

Blockchain can trigger an increase in wages. Also, when an employee becomes eligible for health coverage, they could be used to initiate the benefit; when a probationary period is satisfied.

For international employees, Blockchain can process payroll faster and less expensively, skirting international currency trade fees. By cutting out the intermediary, payments could come within hours rather than days.

Blockchain also increases productivity, by automating and reducing the burden of routine on the employees, data-heavy processes like VAT administration and payroll.

It enhances fraud prevention and cyber security in HR, including both employees and contractors.

For aspirants/ candidates, Blockchain will act as a concept of “self-sovereign identity.” They will be able to store their identity data on their personal devices and share it with those who need to validate it. Through this technology, individuals will be able to have complete control over the data of their lives, providing access keys when they apply for jobs. They could include degrees, certifications, courses taken, grades, employment history, salary and more.

Finally, we can say that technology has surely come a long way and the journey of Blockchain has just begun. The relevance of blockchain will soon be required knowledge for all job seekers, regardless of industry or position. Knowing where to fill the gaps of knowledge is one area where a certified career coach, such as those offered by outplacement and career transition service providers, can help job seekers ensure they are the most qualified candidate for any new role.

For the HR professional, knowing how blockchain can be used to streamline processes, create higher levels of security, and innovate processes will ensure future personal success and further position you as a strategic partner in your organization.

How can you reconcile conflicting laws and keep your workplace both safe and compliant?

It’s a Catch-22 with big implications for your workplace: Marijuana is a Schedule I controlled substance under federal law — in other words, illegal. Yet many states have legalized marijuana for medicinal and even recreational use, with new laws being passed all the time.

As an employer, you may have an obligation to accommodate employees who use marijuana for medical reasons, or you may want to relax your policies to cope with a talent shortage. But can you reconcile the conflicting laws in this area and keep your workplace both safe, compliant and competitive?

Cole doctrine reversed by Sessions

Back in 2013, during the Obama administration, Deputy Attorney General James M. Cole released a memostating that a few key marijuana enforcement priorities were particularly important to the federal government. These included, among others, preventing marijuana distribution to minors; preventing revenue from marijuana sales going to criminal enterprises, gangs and cartels; and preventing drugged driving, gun violence and other adverse health consequences.

Beyond the listed enforcement priorities, however, the so-called Cole Memo explicitly stated its “expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement issues.”

While the memo noted that nothing in it precluded investigation or prosecution under federal law, it also stated that the U.S. Department of Justice was “committed to using its limited investigative and prosecutorial resources to address the most significant threats.”

The Cole Memo, in other words, articulated a largely hands-off approach on the part of the federal government when it came to states’ passage, administration and enforcement of their own marijuana laws.

In January 2018, however, Attorney General Jeff Sessions explicitly rescinded all “previous nationwide guidance specific to marijuana enforcement…effective immediately.”

Know the laws that apply to your workplace

“At last count, there are approximately 30 jurisdictions that have medical marijuana statutes; only about 10 deal with recreational usage,” Linda Hollinshead, a partner in the Philadelphia office of Duane Morris LLP.

“Medical marijuana impacts drug testing and drug-free workplace policies,” she said. “Also, there’s a high probability that an employee on medical marijuana is disabled, bringing in ADA concerns and concerns about discipline and discharge.” She noted that a lot of the laws make clear that employers don’t have to tolerate employees who are “under the influence” at work, but the standard for incapacitation is not clear.

Given that medical marijuana laws vary widely, Hollinshead emphasized that employers must know the law in their particular jurisdiction(s): “Pennsylvania’s statute, for example, says you can’t discriminate against a certified medical marijuana user, but the law does not address whether employers must accommodate use.”

Dustin Carlton, an associate in the Nashville office of Bass, Berry & Sims PLC, similarly noted the wide variance that applies from state to state with regard to statutory language. Accordingly, he told HR Dive, employers should review any existing zero-tolerance, one-size-fits-all policies: “If you are a multi-state employer, you need to assume you need to make some modifications to tailor to each individual state, or make concessions in terms of past practices.”

Certain exceptions apply

Many state marijuana laws have carve-outs, Hollinshead said. Most, for example, provide that you are not required to violate federal law.

The Drug-Free Workplace Act of 1988 requires a drug-free workplace policy for organizations receiving a federal contract over a certain dollar amount (currently set at $100,000), as well as organizations receiving a federal grant of any size.

State marijuana laws also have no bearing on drug-free requirements and testing imposed on safety-sensitive transportation employees by the U.S. Department of Transportation.

Practical considerations for testing and discipline

Employers don’t have to tolerate performance, conduct or safety issues, said Hollinshead. She said that oftentimes when an employee is tested for reasonable suspicion and there’s a finding of marijuana usage, a decision can be made without referencing the test results.

“Typically, when this issue comes up, it’s because something else is amiss — usually that’s the safer issue for discipline,” Hollinshead said. “If you have discipline and discharge policies for underlying conduct, you can rely on those.” This would mean, for example, disciplining or firing the employee, not for the positive marijuana test, but because he or she punched a co-worker, crashed a warehouse vehicle, or had a lengthy history of safety violations.

Carlton said the first step for employers should be to evaluate whether you should be continuing with a zero-tolerance policy if you are not, say, a federal contractor. “If you are still going to disqualify applicants, focus on disqualification for use inthe workplace as opposed to off-duty, legal conduct.”

He said employers should also consider the nature of the job when deciding whether or not to conduct drug testing. “Is it a policy that you’re testing all applicants at the beginning, or only safety-sensitive positions?” He said employers may consider eliminating drug testing except for safety-sensitive positions. “The risk to you as an employer is a lot lower if you’re testing someone who drives a car for you versus a secretary who comes up positive for medical marijuana.”

Recent case law: A shifting tide?

Up until about six months ago, Hollinshead said, employers were winning state law cases brought by employees who were not hired, or fired, due to marijuana usage. The employees were claiming failure to accommodate under the ADA, independent causes of action under state law or entitlement to off-duty usage. The courts, in ruling for the employers, said marijuana is an illegal drug under federal law.

But recently, she said, three cases (from Rhode Island, Connecticut and Massachusetts) have gone the other way; the courts ruled that the federal Controlled Substances Act is not intended to pre-empt state law.

When asked if the new cases ruling in favor of employees were anomalies or a trend, Carlton said, “It’s tough to say — feels like it’s more of a trend, but I don’t know if I can really opine on that. You’d like to think they are more of an anomaly, but considering some of the unique statutory framework, I would expect there to be more challenges to it, more settlements, modifications to past policies to prevent litigation.”

Time will undoubtedly bring more clarity to the issue of workplace marijuana testing. Unfortunately for employers, “it’s really an unsettled area right now,” said Hollinshead.